Further to the above contention, it must be observed that the French version of
Article 21 of the ITLOS Statute is more restrictive.
55 In that context, Judge Cot
opined in his declaration that the French version does not refer to “matters” and it is
not translated as “matières”.
56 This would have been the case if the drafters had
intended to give to that term a meaning that would include a reference to advisory
jurisdiction.
57
Another observation is that Article 21 of ITLOS Statute virtually mirrors Article
36 (1) of ICJ Statute exposing several similarities.
58 Some States and scholars alike
have analyzed the meaning of “matters” in this provision comparing it with Article
36 (1) of the ICJ Statute,
59 where “matters” usually refers to contentious procedures
submitted to the ICJ.
60 One noted author has opined that the jurisdiction of the ICJ in
Article 36 (1) of its Statute signifies that the ICJ has the power to make binding
decisions.
61 Furthermore, that provision in the ICJ Statute does not provide the legal
basis for its advisory jurisdiction.
62 But, ITLOS rejected the proposition that “matters” in Article 21 of the ITLOS Statute should bear the same meaning as it has in the
ICJ Statute or the PCIJ Statute before it.
63 On the contrary, it expressed the view that
the meaning of “all matters”, must surely include requests for advisory opinions, but
it provided no convincing evidence in support of that interpretation.
64
All in all, ITLOS wishes to expand its jurisdiction and play a more important role
in the international dispute settlement mechanism, but it seems that an opportunity
has been missed. It did not make a cogent, clear and articulate demonstration to
justify its advisory jurisdiction based on Article 21 of the ITLOS Statute and made
no effort to justify its interpretation of the word “matters” in accordance with the
1969 Vienna Convention. As Judge Cot stated, the affirmation by the Tribunal of its
advisory jurisdiction without any persuasive reasoning was quite remarkable.
65
Based on the above, it is submitted that it is erroneous to interpret “matters” as
extending to requests for advisory opinions and it is difficult to unreservedly accept
Article 21 of the ITLOS Statute as the legal basis of the full Tribunal’s advisory
jurisdiction.
55 Advisory Opinion, para. 3. See also Ruys and Soete (2016), p. 159.
56 French Version refers to “toutes les fois que cela”, which could be understood as further
restriction on the Tribunal’s jurisdiction.
57 Declaration of Judge Cot in SRFC Advisory Opinion, para. 3.
58 Gao (2012), p. 90.
59 Tanaka (2015), pp. 325, 326; Gao (2012), p. 90; You (2008), p. 362. See also Written Statement
of Ireland, 28 November 2013, para. 2.6.
60 Ruys and Soete (2016), p. 160.
61 Rosenne (1997), p. 659.
62 See Written Statement of the Portuguese Republic, 27 November 2013, para. 10. See also Gao
(2012), p. 90.
63 Advisory Opinion, para. 57.
64 Tanaka (2015), p. 327.
65 Declaration of Judge Cot in SRFC Advisory Opinion, para. 13.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
749
Article 21 of the ITLOS Statute is more restrictive.
55 In that context, Judge Cot
opined in his declaration that the French version does not refer to “matters” and it is
not translated as “matières”.
56 This would have been the case if the drafters had
intended to give to that term a meaning that would include a reference to advisory
jurisdiction.
57
Another observation is that Article 21 of ITLOS Statute virtually mirrors Article
36 (1) of ICJ Statute exposing several similarities.
58 Some States and scholars alike
have analyzed the meaning of “matters” in this provision comparing it with Article
36 (1) of the ICJ Statute,
59 where “matters” usually refers to contentious procedures
submitted to the ICJ.
60 One noted author has opined that the jurisdiction of the ICJ in
Article 36 (1) of its Statute signifies that the ICJ has the power to make binding
decisions.
61 Furthermore, that provision in the ICJ Statute does not provide the legal
basis for its advisory jurisdiction.
62 But, ITLOS rejected the proposition that “matters” in Article 21 of the ITLOS Statute should bear the same meaning as it has in the
ICJ Statute or the PCIJ Statute before it.
63 On the contrary, it expressed the view that
the meaning of “all matters”, must surely include requests for advisory opinions, but
it provided no convincing evidence in support of that interpretation.
64
All in all, ITLOS wishes to expand its jurisdiction and play a more important role
in the international dispute settlement mechanism, but it seems that an opportunity
has been missed. It did not make a cogent, clear and articulate demonstration to
justify its advisory jurisdiction based on Article 21 of the ITLOS Statute and made
no effort to justify its interpretation of the word “matters” in accordance with the
1969 Vienna Convention. As Judge Cot stated, the affirmation by the Tribunal of its
advisory jurisdiction without any persuasive reasoning was quite remarkable.
65
Based on the above, it is submitted that it is erroneous to interpret “matters” as
extending to requests for advisory opinions and it is difficult to unreservedly accept
Article 21 of the ITLOS Statute as the legal basis of the full Tribunal’s advisory
jurisdiction.
55 Advisory Opinion, para. 3. See also Ruys and Soete (2016), p. 159.
56 French Version refers to “toutes les fois que cela”, which could be understood as further
restriction on the Tribunal’s jurisdiction.
57 Declaration of Judge Cot in SRFC Advisory Opinion, para. 3.
58 Gao (2012), p. 90.
59 Tanaka (2015), pp. 325, 326; Gao (2012), p. 90; You (2008), p. 362. See also Written Statement
of Ireland, 28 November 2013, para. 2.6.
60 Ruys and Soete (2016), p. 160.
61 Rosenne (1997), p. 659.
62 See Written Statement of the Portuguese Republic, 27 November 2013, para. 10. See also Gao
(2012), p. 90.
63 Advisory Opinion, para. 57.
64 Tanaka (2015), p. 327.
65 Declaration of Judge Cot in SRFC Advisory Opinion, para. 13.
Advisory Jurisdiction of the International Tribunal for the Law of the. . .
749